State v. Winzenburg

• Citation: 2022 MT 242
• Decision Date: 13 December 2022
• Docket Number: DA 20-0502
• Parties: STATE OF MONTANA, Plaintiff and Appellee, v. NICHOLAS LEE WINZENBURG, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

2022 MT 242

STATE OF MONTANA, Plaintiff and Appellee,
v.
NICHOLAS LEE WINZENBURG, Defendant and Appellant.

No. DA 20-0502

Supreme Court of Montana

December 13, 2022

Submitted on Briefs: October 26, 2022

APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DC-17-324(A) Honorable Amy Eddy, Presiding Judge

For Appellant: Chad Wright, Appellate Defender, Carolyn Gibadlo, Assistant Appellate Defender, Missoula, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Mardell Ployhar, Helena, Montana

Travis R. Ahner, Flathead County Attorney, Andrew C. Clegg, Deputy County Attorney, Kalispell, Montana

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OPINION

Laurie McKinnon Justice

¶1 Nicholas Lee Winzenburg (Winzenburg) appeals his conviction and sentence for robbery entered in the Montana Eleventh District Court, Flathead County. We affirm.

¶2 We restate the following issues for review:^[1]

1. Did Winzenburg knowingly and voluntarily waive his right to counsel?

2. Should this Court exercise plain error review to address Winzenburg's unpreserved claim that the District Court should have given a specific unanimity instruction?

FACTUAL AND PROCUDERAL BACKGROUND

¶3 The following facts were elicited through testimony at trial. On June 3, 2017, victim Solomon Franchi (Franchi) was driving to pick up his friend, Allison Boka (Boka), around midnight. On his way, he stopped to allow Winzenburg-a stranger-to cross the street. Winzenburg made a gesture that implied to Franchi that he needed a lighter. Because Franchi's car window was broken, he unlocked his door to help Winzenburg. Winzenburg opened the unlocked door and got into Franchi's car. Franchi agreed to give Winzenburg a ride, although he testified that he thought Winzenburg was "kind of scary" and "big." Winzenburg asked Franchi to take him to an apartment complex. Once they arrived at the

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apartment complex, Winzenburg went to a door but returned to the car after no one answered. He told Franchi, "I guess I'm mobbing with you." Franchi perceived this comment as Winzenburg telling him that he was going to hang out with Franchi for the rest of the night. Franchi did not want to hang out with Winzenburg but did not tell Winzenburg to leave because he did not want to be "impolite." Franchi proceeded to pick up Boka with Winzenburg in the car.

¶4 Boka was outside with a friend when Franchi and Winzenburg arrived at her house. Winzenburg exited the car and stood "very creepily behind" Franchi and Boka. Boka got into the car with Franchi and Winzenburg. She sat in the back seat. While they were driving, Winzenburg pulled out a can, which Franchi and Boka presumed to be an alcoholic beverage. Winzenburg told the two friends that he was recently released from prison. Franchi and Boka were intimidated and scared by this statement, so Franchi drove to the nearest grocery store parking lot to try to get Winzenburg out of the car and make him leave them alone.

¶5 After parking at the grocery store, Franchi told Winzenburg that he and Boka wanted to be left alone. Winzenburg responded, "You know what's happening, I'm robbing you." Franchi replied by handing Winzenburg money and asking again for him to leave them alone. Next, Winzenburg tried to take the keys from the car's ignition. However, Franchi was able to get the keys by grabbing a lanyard that was attached to them. Winzenburg ordered Franchi to leave his keys and phone and get out of the car.

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Winzenburg then threatened that he would drag Franchi out of the car if Franchi refused to comply, but Franchi took his keys and he and Boka ran from the car and called 911.

¶6 Officer Brian Struble (Struble) arrived at the grocery store after Franchi and Boka frantically flagged him down. Struble saw Winzenburg get out of the driver's seat of Franchi's car. Winzenburg walked over to Struble, and Struble arrested him. Winzenburg lied to Struble that he had known Franchi for ten years, and that Franchi and Boka walked away from the car after they had an argument. Winzenburg also gave Struble a false name. Struble talked with Franchi and Boka after Winzenburg's arrest and noticed that Franchi was visibly trembling. Franchi looked through his car and told Struble items were missing. Struble found the missing items on Winzenburg. Later, Franchi and Boka went to the police station and gave statements. A surveillance video obtained from law enforcement showed Franchi and Boka running from the car and was consistent with their statements to police.

¶7 At the end of June, Winzenburg appeared for a charge of robbery. The Justice of the Peace set bail at $50,000, appointed a public defender, and set his arraignment. Winzenburg's first counsel represented him until Winzenburg wrote a letter to the District Court ten days after charges were filed advising he no longer needed an attorney and that he would "be handling [his] case pro se." The District Court did not respond to his letter, but Winzenburg was assigned new counsel. While he was represented, Winzenburg also filed a pro se motion to dismiss his case. The Clerk of Court rejected the motion because he was represented by counsel at the time.

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¶8 Winzenburg's next counsel was substituted at his arraignment on July 20, 2017. Winzenburg did not meet his new counsel before his arraignment. At the arraignment, the District Court was ready to hear argument for a bond reduction. However, Winzenburg's...